Irvin v. Parker

• Citation: 139 S.W.3d 703
• Decision Date: 17 June 2004
• Docket Number: No. 2-02-258-CV.,2-02-258-CV.
• Parties: W. Ray IRVIN, Jr., Appellant, v. Loretta PARKER, Appellee.
• Court: Court of Appeals of Texas

139 S.W.3d 703

W. Ray IRVIN, Jr., Appellant, v. Loretta PARKER, Appellee.

No. 2-02-258-CV.

Court of Appeals of Texas, Fort Worth.

June 17, 2004.

Appeal from the County Court at Law No. 1, Wichita County, Jim C. Hogan, J Crampton & Crampton, Barbara C. Crampton, Wichita Falls, TX, for Appellant.

Brooks & Campbell, LLP, C. Dan Campbell, Wichita Falls, TX, for Appellee.

PANEL A: CAYCE, C.J.; HOLMAN and GARDNER, JJ.

OPINION

ANNE GARDNER, Justice.

This case involves a property dispute between Appellee Loretta Parker, the sister of Noma Bishop Irvin, deceased, in her capacity as the administratrix of Noma's estate, and Appellant Ray Irvin, Noma's widower. Ray appeals the portion of the trial court's judgment ordering Prudential Insurance Company of America to turn over to Loretta the proceeds of an annuity purchased during Ray and Noma's marriage. In four issues, Ray asserts that the evidence is legally and factually insufficient to support the jury's finding that the Prudential annuity was purchased with Noma's separate property funds, and he argues that the trial court erred in admitting a prior pleading as an admission against interest and in charging the jury with respect to the abandoned pleading. We affirm in part and reverse and remand in part.

I. FACTUAL AND PROCEDURAL BACKGROUND

Noma owned and inherited substantial property when her first husband Garland Bishop died in 1965. Noma later married Ray in 1968 and remained married to him until her death in May 1998. At the time of Noma's death, her will named her brother-in-law, Bobby Joe Parker as the executor, but it did not name an alternate executor. But because Bobby Joe Parker had died in 1993, Noma's sister, Loretta, applied to be the administratrix of Noma's estate when Noma died. On July 28, 1998, the trial court signed an order admitting Noma's will to probate and appointing Loretta as the will's administratrix.

Under the terms of Noma's will, her estate passed to Loretta, Loretta's siblings, and Loretta's children. On December 11, 1998, Loretta filed a petition to recover property belonging to Noma's estate and requested, among other things, that Ray return two certificates of deposit totaling $70,000 and $75,000 that Loretta alleged were Noma's separate property. Through discovery, Loretta determined that the $75,000 had been used to purchase an annuity from Prudential. On October 18, 1999, Loretta filed a petition against Ray and Prudential, asserting that Ray had taken $75,000 of Noma's separate property, purchased an annuity from Prudential in 1996, made himself the owner of the annuity, and thereby converted Noma's separate property.

On December 17, 2001, Ray, Loretta, and Prudential signed an agreement regarding the annuity issued to Ray in 1996. Prudential acknowledged that although Ray claimed he was entitled to the proceeds of the annuity, Loretta likewise claimed that she was entitled to the annuity because she alleged that the annuity was purchased with Noma's separate property. The parties agreed that the claims were adverse and conflicting and would be determined in the pending lawsuit. Prudential further agreed to freeze the annuity and to distribute the annuity and its proceeds only when presented with the trial court's final determination of who was entitled to the funds from the annuity. Loretta then nonsuited Prudential, and Loretta and Ray agreed not to name Prudential as a defendant in the pending lawsuit.

In February 2002, Loretta tried her case against Ray. During trial, Loretta offered evidence that on October 18, 1993, Noma and Ray opened AmWest Savings Association account number 11-136970-0 with a $75,000 deposit. The name on the account was "W. Ray Irvin, Jr. or Noma G. Irvin, Trustees for Loretta Parker." Thomas Barber, who is a certified public accountant, testified for Loretta as a tracing expert and stated that the account was set up as a revocable trust. Barber testified that, on October 19, 1994, Ray withdrew $75,006.98 from AmWest Account No. 11-136970-0 by obtaining a check made payable to "W RAY IRVIN JR OR NOMA G IRVIN TRUSTEES FOR LORETTA PARKER."

On the same day, Noma and Ray opened account number 132700348 at Guaranty Federal Bank, and it was also named "W RAY IRVIN OR NOMA G IRVIN ITF LORETTA PARKER." Barber testified that five days later, on October 24, Ray deposited $75,000 in the Guaranty Federal account. Then, on January 24, 1996, Ray withdrew $75,046.24 from the Guaranty Federal account and purchased the annuity at issue from Prudential Insurance Company.

Purdom Keeling, the Prudential representative who sold Noma and Ray the annuity, testified that he primarily worked with Ray in persuading them to purchase the annuity. Keeling testified that when he sold the annuity, Noma pulled out the checkbook, and Ray signed the check.¹ The Prudential annuity listed Noma and Ray as co-annuitants, Ray as the sole owner of the annuity, and Loretta as the beneficiary, if living, and Ray's estate as the alternate beneficiary.

Ray testified that he and Noma received $500 a month from the Prudential annuity. Ray stated that shortly after Noma's death, the Prudential annuity was garnished, and he was "not getting any good out of it." While he offered no testimony as to the present value of the Prudential annuity at the time of trial, in a portion of Ray's deposition that was read to the jury, Ray estimated the present value of the annuity on February 9, 1999 to be approximately $70,000.

As we discuss more fully below, Loretta and Ray presented competing evidence and arguments as to the origin of the purchase money for the Prudential annuity. Loretta attempted to trace the $75,000 purchase money back to Noma's separate property while Ray offered evidence to suggest that Loretta could not trace the funds back to Noma's separate property and that the purchase money was presumed to have come from the couple's community estate.

After considering all of the evidence and testimony before it, the jury answered Question One as follows:

Do you find from clear and convincing evidence, that the Prudential Annuity was purchased with separate property funds of Noma Bishop Irvin?

Answer: Yes.

The jury also determined that Noma did not knowingly consent to Ray being the owner of the Prudential annuity on the date of purchase. Based on these findings, the trial court signed a judgment ordering Prudential to turn over the proceeds of the annuity to Noma's estate.²

II. ABANDONED PLEADING

Before turning to Ray's sufficiency complaints, we will address his fourth issue concerning whether the trial court erred in admitting a prior pleading as an admission against interest and by charging the jury on the admission in the abandoned pleading. In Ray's response to Loretta's petition to recover estate property, Ray pleaded, "The C.D. which appears to have been the separate property of Noma was used to purchased [sic] a Prudential annuity (copy attached)."

When Loretta offered the abandoned pleading at trial, the court conducted a bench conference concerning its admissibility. At the conclusion of the conference, both sides agreed that the abandoned pleading was admissible for a limited purpose, and Ray stated that he had "[n]o objection" to the abandoned pleading's admission. See generally Long v. Knox, 155 Tex. 581, 291 S.W.2d 292, 294 (1956) ("[A]n admission against interest in an abandoned pleading may be used in evidence against the pleader, but is not conclusive."); Kirk v. Head, 137 Tex. 44, 152 S.W.2d 726, 729 (1941); Hughes v. Fort Worth Nat'l Bank, 164 S.W.2d 231, 232 (Tex.Civ.App.-Fort Worth 1942, writ ref'd). Because Ray withdrew his objection to the admissibility of the abandoned pleading and therefore did not obtain a ruling from the trial court concerning the issue that he now raises on appeal, we conclude that Ray waived his complaint concerning the admissibility of his abandoned pleading.³ Tex.R.App. P. 33.1(a); see also Tex.R. Evid. 103(a)(1); Bushell v. Dean, 803 S.W.2d 711, 712 (Tex.1991) (op. on reh'g).

Further, we hold that Ray failed to preserve any error with respect to the abandoned pleading jury instruction because he did not object to the charge concerning that instruction. See Tex.R. Civ. P. 274 ("Any complaint as to a question, definition, or instruction, on account of any defect, omission, or fault in pleading, is waived unless specifically included in the objections."); State Dep't of Highways & Pub. Transp. v. Payne, 838 S.W.2d 235, 239-41 (Tex.1992); Wilgus v. Bond, 730 S.W.2d 670, 672 (Tex.1987). Accordingly, we overrule issue four.

III. SUFFICIENCY OF THE EVIDENCE

In his first three issues, Ray challenges the legal and factual sufficiency of the evidence to support the jury's finding in question one that the Prudential annuity was purchased with Noma's separate property funds. Specifically, Ray maintains that Loretta failed to trace the money used to purchase the annuity back to Noma's separate property and thereby failed to overcome the presumption that, at the time of Noma's death, the Prudential annuity was included in the community estate. See Tex. Fam.Code Ann. § 3.003(a) (Vernon 1998). We agree.

A. Characterization of Property

Property possessed by either spouse during or on the dissolution of marriage is presumed to be community property. Id.; Boyd v. Boyd, 131 S.W.3d 605, 612 (Tex.App.-Fort Worth 2004, no pet.); Evans v. Evans, 14 S.W.3d 343, 346 (Tex.App.-Houston [14th Dist.] 2000, no pet.). This presumption applies not only to dissolution by divorce, but also by death. Lee v. Lee, 43 S.W.3d 636, 641 (Tex.App.-Fort Worth 2001, no pet.); Evans, 14 S.W.3d at 346; Smith v. Lanier, 998 S.W.2d 324, 331 (Tex.App.-Austin 1999, pet. denied). To overcome this presumption, a party claiming certain property as separate property must establish by clear and convincing evidence the separate character of the property through tracing. Tex. Fam.Code Ann. § 3.003(b); Boyd, 131 S.W.3d at 612 (ci...